said "that the opinion which should exclude a juror must be a fixed and deliberate one, partaking in fact of the nature of a prejudgment."

§ 150. When the Objection Should be Regarded.-Where the evidence clearly shows that the objection raised is vital in its character, and is not referred to a mere matter of trivialty or detail, but strikes at the foundation of the organization of the jury panel as where the proof elicited shows the facts, that too many or too few persons composed the jury, or that the public officials failed to perform their duty by omitting to make any selection or list of names as is required by law; or to properly draw or summon any or all of the panel from the names selected-such evidence discloses fatal defect in the composition of the jury, and is pertinent as showing the invalidity of any indictment found by them. Barney v. State, 12 Smedes & M. 68; Stokes v. State, 24 Miss. 621; Finley v. State, 61 Ala. 201; Fitzgerald v. State, 4 Wis. 395; Doyle v. State, 17 Ohio, 222; Low's Case, 4 Me. 439; People v. King, 2 Cai. 98; McCloskey v. People, 5 Park. Crim. Rep. 308; State v. Bryce, 11 S. C. 342; People v. Thurston, 5 Cal. 69; Com. v. Cherry, 2 Va. Cas. 20; Com. v. St. Clair, 1 Gratt. 556; State v. Griffice, 74 N. C. 316; State v. McNamara, 3 Nev. 71; Clare v. State, 30 Md. 164; Portis v. State, 23 Miss. 578; Brown v. Com. 73 Pa. 321; People v. Earnest, 45 Cal. 29; State v. Harden, 3 Rich. L. 533; Davis v. State, 46 Ala. 80; Finnegan v. State, 57 Ga. 427; O'Byrnes v. State, 51 Ala. 25; Clinton v. Englebrecht, 80 U. S. 13 Wall. 434, 20 L. ed. 659; Com. v. Norfolk County Ct. of Sessions, 5 Mass. 435; Nicholls v. State, 5 N. J. L. 539; Chase v. State, 20 N. J. L. 218; State v. Williams, 1 Rich. L. 188; People v. McKay, 18 Johns. 212; State v. Lightbody, 38 Me. 200; Rawls v. State, 8 Smedes & M. 599; Com. v. Parker, 2 Pick. 550; Eaton v. Com. 6 Binn. 447; State v. Cantrell, 21 Ark. 127; McElhanon v. People, 92 Ill. 369; State v. Symonds, 36 Me. 128; United States v. Hammond, 2 Woods C. C. 197; State v. Rockafellow, 6 N. J. L. 405; Reich v. State, 53 Ga. 73, 21 Am. Rep. 265; State v. Foster, 9 Tex. 65; Jackson v. State, 11 Tex. 261; State v. Davis, 12 R. I. 492, 34 Am. Rep. 704; 1 Chitty, Crim. Law, 307; 2 Hawk. P. C. 307; 2 Hale, P. C. 155; Strauder v. West Virginia, 100 U. S. 303, 25 L. ed. 664; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567.

In criminal cases and especially those involving such a moment

ous result as the life of the accused, it is quite essential that no irregularity on the part of the jury is permitted which can possibly prejudice him, and in such a case a new trial will ordinarily be granted unless it clearly appears that it did not affect the verdict. Eastwood v. People, 3 Park. Crim. Rep. 25; People v. Johnson, 46 Hun, 667.

§ 151. Irregularity of the Grand Jury may be Shown.The exclusionary rules that formerly obtained as to the inviolability of grand jury secrets, have entirely disappeared. It is now well settled, that when evidence of a grand juror as to proceedings before that body becomes material to the administration of justice, such evidence will be allowed and indeed demanded. State v. Broughton, 29 N. C. 96; State v. Wood, 53 N. H. 484; Burnham v. Hatfield, 5 Blackf. 21; Little v. Com. 25 Gratt. 921; United States v. Charles, 2 Cranch, C. C. 76; Com. v. Hill, 11 Cush. 137; People v. Young, 31 Cal. 563; Burdick v. Hunt, 43 Ind. 381; Com. v. Mead, 12 Gray, 167, 71 Am. Dec. 741.

Numerous instances in our criminal annals disclose an attempt on the part of the accused to vitiate the indictment against him, by introducing evidence having a tendency to affect the constitutionality of the organization' under which the functions of the jury are supposed to derive their force. And wherever evidence showing this informality is of a direct and convincing kind a question at once arises of the utmost gravity. Because of the far reaching consequences of such evidence, whenever it is properly introduced, the question under review is thought to merit the somewhat extended examination it receives in this immediate connection.

When old and valid laws still operative for the obtainment of a grand jury are disregarded, and a new, unlawful and forbidden enactment is obeyed in its selection, what possible vitality of life can an organization thus set on foot obtain? See in this connection the opinion of the chancellor in People v. White, 24 Wend. 539, 540, 541, 542, as to the distinction between de facto officers of a tribunal "duly organized," and of the "de facto officers of an unconstitutional and therefore illegally organized court;" also, Hildreth v. McIntire, 1 J. J. Marsh. 206-209; also Green v. State, 59 Md. 125, 43 Am. Rep. 542, in which the court of appeals of that state, per Irving, J., says: "The general method prescribed for drawing juries is mandatory, and substantial

compliance with the provisions thereof in respect to the selection and drawing of jurors is necessary to make the jury a legal one; and unless the selections are made by the judge in the manner pointed out by the statute, exception at the proper time and in the proper way may be successfully taken to a jury improperly chosen or drawn; otherwise the statutory provisions would be wholly nugatory;" also Dutell v. State, 4 G. Greene, 125, which was to review the denial of a motion "to quash the indictment on the ground that the grand jurors who found it were not selected according to law." The court says, per Greene, J.: "But it is urged by the attorney general, that the defendant cannot raise this objection after the indictment is found, but that he should have challenged the panel of the grand jury. This course may be adopted with propriety by a defendant held to answer for a public offense; but can it be expected that citizens at large, against whom there is no imputation of offense, are required to appear and challenge the panel of grand jurors, or be forever precluded from raising an objection to their selection or authority to act? It is true, as a general rule, that when the indictment is duly exhibited in open court, and indorsed 'a true bill,' it is evidence that it was duly found by a legal grand jury. But when the records of a county show that the grand jury were not legally selected, and had no authority to act, it is evidence of a higher grade, and shows that the indictment could not have been found, exhibited and indorsed by legal authority." See also Keitler v. State, 4 G. Greene, 291; State v. Symonds, 36 Me. 128.

Evidence of irregularities in the selection or empanelling of the grand jury which do not affect the material rights of the suspect, are inadmissible, as in such case the irregularities if proven would afford no valid ground of objection to the indictment. People v. Petrea, 92 N. Y. 128.

Courts will not listen to an objection made to the constitutionality of an act by the party whose rights it does not affect, and who, therefore, has no interest in defeating it. Cooley, Const. Lim. 163, 164; Re Wellington, 16 Pick. 87, 26 Am. Dec. 631. Nor will they look with indulgence upon objections to irregu larities in the mode of selecting or drawing grand jurors committed without fraud or design, which have not resulted in placing upon any panel disqualified jurors.

"Mere irregularities in the drawing of a grand jury and petit

jurors do not furnish a ground for reversing a conviction unless it appears that they operated to the injury or prejudice of the prisoner." Cox v. People, 80 N. Y. 500.

§ 152. Evidence in Support of Verdict.-Affidavits of the jurors are always admissible to sustain their verdict as rendered, and while evidence is rarely heard to impeach a verdict, in all cases where it becomes necessary to sustain the conclusion reached, affidavits tending to that result may be read as evidence. State v. Bailey, 32 Can. 83; Downer v. Baxter, 30 Vt. 467; Martin v. People, 54 Ill. 225; Thrall v. Lincoln, 28 Vt. 356; State v. Wart, 51 Iowa, 587; Clayton v. State, 100 Ind. 204; Taylor v. Everett, 2 How. Pr. 23; Long v. State, 95 Ind. 486; Kennedy v. Com. 2 Va. Cas. 510; De Hart v. Etnire, 121 Ind. 244; State v. Cucuel, 31 N. J. L. 249; Carter v. Ford Plate Glass Co. 85 Ind. 189; Coker v. State, 20 Ark. 53; Jenkins v. State, 41 Tex. 128; Stanton v. State, 13 Ark. 317; Eastwood v. People, 3 Park. Crim. Rep. 25; People v. Kelly, 46 Cal. 357; Tenney v. Evans, 13 N. H. 462; People v. Murray, 85 Cal. 361; State v. Howard, 17 N. H. 171; People v. Dye, 62 Cal. 523; State v. Pike, 20 N. H. 344; People v. Goldenson, 76 Cal. 352; State v. Ayer, 23 N. H. 301; People v. Thornton, 74 Cal. 488; Boynton v. Trumbull, 45 N. H. 408; Grinnell v. Phillips, 1 Mass. 530; Dana v. Tucker, 4 Johns. 487; Ferrill v. Simpson, 8 Pick. 359; Crockett v. State, 52 Wis. 214; Grottkau v. State, 70 Wis. 470; Bradford v. State, 15 Ind. 347.

Medler v. State, 26 Ind. 171; Spencer v. Traford, 42 Md. 1;

Jurors cannot be called as witnesses to prove their own official misconduct or that of their fellows. Such a course is conspicuously illegal. The court cannot base its action on such testimony, for it has been the long established rule that jurors cannot be called to the stand for such a purpose. Titus v. State, 49 N. J. L. 36.

CHAPTER XXV.

EVIDENCE OF OTHER OFFENSES.

§ 153. The General Rule Excludes.

154. An Exception Noted to the Above Rule.

155. Evidence of Another Crime if Pertinent to the Issue is Admissible.

156. Rule as to Misdemeanors.

157. Evidence of other Offenses Should be Cautiously Admitted.

158. Fabrication and Suppression of Evidence.

§ 153. The General Rule Excludes.-It is indeed elementary law that no evidence can be admitted which does not tend to prove the issue joined, and the reason and necessity of the rule are much stronger in criminal than in civil cases for the observance of this rule and of confining the evidence strictly to the issue. The indictment is all that the defendant is expected to come prepared to answer. Therefore, the introduction of evidence of another and extraneous crime is calculated to take the defendant by surprise and do him manifest injustice by creating a prejudice against his general character. People v. Sharp, 107 N. Y. 427.

The general rule is against receiving evidence of another offense. A person cannot be convicted of one offense upon proof that he committed another, however persuasive in a moral point of view such evidence may be. It would be easier to believe a person guilty of one crime if it was known that he had committed another of a similar character, or, indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one. Coleman v. People, 55 N. Y. 81; State v. Lapage, 57 N. H. 245; People v. Gibbs, 93 N. Y. 471; Snyder v. Com. 85 Pa. 519; Com. v. Miller, 3 Cush. 243; State v. Turner, 76 Mo. 350; Brock v. State, 26 Ala. 105; State v. Shuford, 69 N. C. 486; Stone v. State, 4 Humph. 27; Rosenweig v. People, 63 Barb. 634; Barton v. State,